Citation Nr: 0202591
Decision Date: 03/20/02 Archive Date: 04/04/02
DOCKET NO. 00-24 287A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Whether new and material evidence has been received to reopen
the claim for service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran served on active duty from September 1968 to
September 1972. The appellant, who was his spouse, appealed
a June 2000 Department of Veterans Affairs (VA) Regional
Office (RO) rating decision continuing a prior denial for
service connection for the cause of the veteran's death. She
presented testimony before the undersigned during a
videoconference hearing in December 2001.
FINDINGS OF FACT
1. The RO last denied service connection for the cause of
the veteran's death in May 1997. It notified the appellant
of her right to appeal it within one year thereof at the
time, and the appellant did not appeal that decision.
2. The evidence added to the record since the last
determination is either cumulative or not competent.
CONCLUSIONS OF LAW
1. The RO's May 1997 decision, which denied a claim of
entitlement to service connection for cause of the veteran's
death, became final. 38 U.S.C.A. § 7105(c) (West 1991).
2. New and material evidence has not been received since the
RO's May 1997 decision denying the appellant's claim for
service connection for cause of the veteran's death; thus the
claim for service connection for cause of the veteran's death
is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §
3.156 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000.
The veteran's service medical records were in his claims
folder as of a February 1991 RO rating decision denying
service connection for the veteran's death as due to
hypovolemic shock due to massive gastrointestinal bleeding
due to cirrhosis and alcohol abuse, and it was indicated at
the time that service medical records were negative for
treatment or diagnosis of the disease or condition related to
the immediate cause of death listed on the death certificate.
In addition to the death certificate, the service medical
records and an April 1986 private medical record showing
hepatic disease from January 1985 were present.
In February 1991, the RO advised the appellant of its
decision and that to show service connection, she had to send
evidence showing that the condition began or was made worse
in service and that it continued until the veteran's death.
It advised her that the best evidence would be medical
evidence and statements from persons who had knowledge of the
veteran's condition.
In April 1994, the RO advised the appellant of the prior
final February 1991 RO rating decision and that she had to
submit new and material evidence to reopen. It also advised
her what new and material evidence was.
In August 1994, the RO denied service connection for the
cause of the veteran's death as due to Agent Orange exposure
and it advised her of its decision and of her right to appeal
it within one year thereof.
In August 1995, the appellant described private treatment the
veteran had received.
In September 1995, the RO sent requests for medical records
to the facilities the appellant identified in August 1995.
In February 1996, the RO advised the appellant that one of
the private health care providers needed additional
information from her. In February 1996, the appellant
provided additional information. In April 1996, the RO made
another request of the private health care provider. In July
1996, the RO advised the appellant that it had denied her
claim because that private health care provider had not
supplied any evidence.
In May 1997, the RO advised the appellant that it could not
reopen her claim unless she submitted new and material
evidence. It advised her of her right to appeal its decision
within one year thereof.
In November 1998, the appellant applied to reopen a claim.
In August 1999, the RO wrote a letter to the appellant
indicating that it needed additional evidence from her. It
advised her that a review of the records held by VA did not
indicate that the veteran had ever been diagnosed with post-
traumatic stress disorder during his lifetime. She was asked
to please submit medical evidence of that diagnosis and of
its relation to the veteran's death as stated on his death
certificate.
Subsequently, the RO wrote a letter to the appellant
indicating that it had denied her cause of death claim in
February 1991 and August 1994, that the cause of the
veteran's death was cirrhosis of the liver, and that it had
been unable to verify that the cause of the veteran's death
was related to Agent Orange exposure in Vietnam. It further
advised her that its records reflected that she applied to
reopen a claim in September 1998 for service connection for
the cause of the veteran's death due to cirrhosis of the
liver due to alcoholism as a secondary condition to post-
traumatic stress disorder. It stated that VA records did not
indicate that the veteran was ever diagnosed with post-
traumatic stress disorder during his lifetime. It also
advised her that in August 1999, it had requested her to
submit medical evidence of a diagnosis of post-traumatic
stress disorder and its relationship to the veteran's death,
and that to date, it had not received a response to that
letter. It advised her that if she had any additional
evidence to be considered, she should submit it.
In October 1999, the appellant indicated that the veteran had
been followed at Ft. Sam Houston in San Antonio, Texas.
In December 1999, the RO advised the appellant that it had
written her in August 1999 requesting medical evidence
showing the diagnosis of post-traumatic stress disorder and
its relation to the cause of the veteran's death as shown on
the veteran's death certificate. Because it had not received
it, it had to deny her claim. If she was having difficulty
getting the evidence, she was to call VA, as it might be able
to help her.
In January 2000, the appellant stated that the veteran had
had cancer of the esophagus.
The RO made a VA patient inquiry to the San Antonio VA
Medical Center, and the San Antonio VA Medical Center
responded that there were no records of the veteran there.
In April 2000, the RO advised the appellant that service
connection for the cause of the veteran's death had
previously been denied, and that once a claim has been
finally disallowed, it could not be reopened unless there was
new and material evidence. It advised her of what new and
material evidence was and advised her that she had to submit
it to successfully reopen her claim.
Private medical records dating from 1982 to 1989, including
some from the private health care provider which had not
responded to VA's requests for evidence in 1996, were
received from the appellant in June 2000.
In June 2000, the RO continued the prior denial of service
connection for the cause of the veteran's death. The RO's
letter to the appellant indicated that her claim had been
denied because the evidence did not show that the veteran
died in service or from a service-connected disability. It
enclosed a copy of the rating decision which indicated that
the appellant had claimed that the cause of the veteran's
death was secondary to his post-traumatic stress disorder.
It noted that during the veteran's lifetime, he was not
diagnosed with post-traumatic stress disorder. Medical
evidence had shown that he was treated for gastrointestinal
bleeding and cirrhosis. However there was no medical
evidence showing a relationship to the claimed post-traumatic
stress disorder.
The appellant appealed that decision in August 2000. The RO
issued her a statement of the case in November 2000. It
advised her of pertinent law and regulations concerning
service connection for the cause of the veteran's death. It
further advised her what the death certificate showed the
veteran's death to have been caused by, of her assertion that
his death was due to post-traumatic stress disorder, and that
there had been no evidence submitted showing that the veteran
had been treated for or diagnosed with post-traumatic stress
disorder related to military service and that there had been
no evidence submitted showing that post-traumatic stress
disorder contributed to his death.
In April 2001, the RO wrote a letter to the appellant
indicating that she could send in new evidence.
In April 2001, the appellant requested a hearing before a
Board member.
In December 2001, a videoconference hearing was conducted
between the appellant and the undersigned. During the
hearing, the appellant testified as to why she felt service
connection for the cause of the veteran's death was
warranted. The Board member asked questions of her in an
attempt to explore the basis of claimed entitlement, and
advised her that he would hold the file open for an
additional 30 days for any additional evidence or statements.
The appellant was encouraged to submit evidence to support
her lay assertions.
The Veterans Claims Assistance Act of 2000 [VCAA] provides
that VA shall make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate the claimant's
claim for a benefit under a law administered by VA, unless no
reasonable possibility exists that such assistance would aid
in substantiating the claim. The law further provides that
VA may defer providing assistance pending the submission by
the claimant of essential information missing from the
application. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 3(a); 114 Stat. 2096, (2000); 38 U.S.C.A.
§ 5103A (West Supp. 2001).
The law further provides that the assistance provided by the
Secretary shall include providing a medical examination or
obtaining a medical opinion when such an examination or
opinion is necessary to make a decision on the claim. An
examination is deemed "necessary" if the evidence of record
(lay or medical) includes competent evidence that the
claimant has a current disability, or persistent or recurrent
symptoms of disability; and indicates that the disability or
symptoms may be associated with the claimant's active
military, naval, or air service; but does not contain
sufficient medical evidence for the Secretary to make a
decision on the claim. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 3(a); 114 Stat. 2096 (2000);
38 U.S.C.A. § 5103A (West Supp. 2001).
With respect to the issue on appeal, the Board concludes that
VA's statutory duty to assist the appellant in the
development of her claim has been satisfied. There is ample
medical and other evidence of record. The appellant and her
representative have not pointed to any evidence which may be
relevant to her claim which has not been associated with the
claims folder. A meticulous review of the record reveals
that the appellant has not alleged in-service treatment of
post-traumatic stress disorder but merely its in-service
incurrence. The appellant and her representative have been
accorded the opportunity to present evidence and argument in
support of her claim. An opinion is not necessary as there
is no competent medical evidence of record showing that the
veteran had post-traumatic stress disorder or that what he
died from was caused by Agent Orange exposure. The action
required pursuant to 38 U.S.C.A. § 1116(b)(1) as amended by
Public Law 107-103, 115 Stat. 976 (2001), and the fact that
diseases which caused or have been claimed to have caused the
veteran's death have not been added to the list of diseases
at 38 C.F.R. § 3.309(e) (2001) which shall be presumed to
have been incurred in Vietnam service further militate
against further development.
The record shows that the appellant was notified of RO rating
decisions, and that she has been provided a statement of the
case and supplemental statements of the case, informing her
of the evidence necessary to substantiate her claim and of
criteria needed to be satisfied. The Board concludes that
the discussions in the rating decision, statement of the
case, letters sent to the appellant, and their enclosures
informed her of the information and evidence needed to
substantiate her claim and complied with VA's notification
requirements. The Board notes the action and information
described above, and that the appellant has been advised of
it in correspondence from VA, including recently, in VA's
June 2000 rating decision and letter to the appellant and in
its November 2000 Statement of the Case correspondence to
her.
Second, VA has a duty to make reasonable efforts to help the
appellant obtain evidence necessary to substantiate the
claim. Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (38 U.S.C.
§ 5103A) (West Supp. 2001); 38 C.F.R. § 3.103 (2001). The
Board concludes that VA has complied with this duty. The
Board notes the action and information described above, and
that the appellant has been advised of it by VA. The Board
concludes that evidence of record is sufficient for the
determination at issue, and no other development is deemed
necessary. See 38 U.S.C.A. § 5107A(c)(1) and
38 C.F.R. § 3.304(c) (2001). VA has made reasonable efforts
to help the appellant obtain necessary evidence. 66 Fed.
Reg. 45620-45632 (Aug. 29, 2001) (to be codified at
38 C.F.R. § 3.159(c) and 3.326).
The communications from VA informed her of the type of
evidence which would be relevant and assisted her in
providing it.
The Board notes that VA's duty to assist the appellant in
developing facts pertinent to her claim is heightened in
cases where service medical records are missing. Moore v.
Derwinski, 1 Vet.App. 401, 406 (1991). However, the Board
notes that VA has reasonably attempted to develop the facts
of this claim, as indicated by the actions and information
described above. Its actions included obtaining and
considering service medical records, which reportedly were
negative. There is no indication at this point where the
veteran's service medical records are, and it appears at this
point that the NPRC does not have additional service medical
records and so additional attempts to obtain them would be
futile. See 66 Fed. Reg. 45620-45632 (Aug. 29, 2001) (to be
codified at 38 C.F.R. § 3.159). Moreover, the appellant has
not alleged in-service treatment or notation but merely
in-service incurrence. Additionally, VA has advised the
appellant that service connection can be established by means
other than service medical records and has detailed those
means.
In this case, the Board finds that VA has complied with the
duty to assist and the duty to notify the appellant and her
representative of any information and evidence needed to
substantiate and complete a claim. It is concluded that the
actions of VA meet the requirements of VCAA and
38 C.F.R. § 3.103 (2001) and 66 Fed. Reg. 45620-45632 (Aug.
29, 2001) (to be codified as amended 38 C.F.R. §§ 3.159 and
3.326).
In the circumstances of this case, a remand would serve no
useful purpose, so a remand is not necessary. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6
Vet. App. 426, 430 (1994).
Finally, even though the RO did not have the benefit of the
explicit provisions of the VCAA or the new provisions at 66
Fed. Reg. 45620-45632 (Aug. 29, 2001) which are to be
codified at 38 C.F.R. §§ 3.159 and 3.326, before they were
enacted, VA's duties have been fulfilled. Moreover, as the
Board finds that the directives of the VCAA have been
complied with regarding VA's duties to notify and to assist
the appellant, the Board finds that the appellant has not
been prejudiced by the Board's consideration of the merits of
her claim, as set forth below. See Bernard v. Brown, 4 Vet.
App. 384 (1993) [when the Board addresses in its decision a
question that has not been addressed by the RO, it must
consider whether the appellant has been given adequate notice
to respond and, if not, whether she has been prejudiced
thereby]. For the reasons previously set forth, the Board
believes that the appellant has been given ample process to
provide evidence and argument in support of her claim. In
short, the Board finds that the appellant has been given
adequate notice of the need to submit evidence or argument
and that she is not prejudiced by this decision.
The Board next notes that the videoconference hearing before
the undersigned in December 2001 complied with
38 C.F.R. § 3.103. The Board member attempted to ensure
completeness of the record and to explore fully the basis for
claimed entitlement. The appellant testified, and she was
given an extra 30 days within which to submit additional
evidence. The appellant and the representative were afforded
an opportunity to support the lay assertions with competent
evidence. More specifically, the Board member at the hearing
informed that appellant and the representative that the
records appeared to be complete and the service organization
agreed to determine if there were any additional records that
were outstanding. The Board concludes that the evidentiary
defect was identified at the hearing and the parties were
accorded an opportunity to cure that defect. The actions of
the VA and the actions of this Board member comply with VCAA
and 38 C.F.R. § 3.103.
Factual background
The appellant claimed service connection for the cause of the
veteran's death in August 1990. At the time, she submitted a
death certificate indicating that the veteran died in May
1990 from hypovolemic shock due to massive gastrointestinal
bleed due to cirrhosis due to ethanol abuse. The death
certificate indicated that cirrhosis had been present for a
long time. The appellant stated that the veteran had
regularly beaten her over a 19-year period, and that he had a
mental state which she felt was due to his Vietnam
experience.
The veteran had not claimed or been adjudicated as having any
service-connected disabilities prior to his death. He had
claimed, in May 1986, VA pension benefits, on the basis of
cirrhosis of the liver, which he stated began in January
1985.
An April 1986 private medical record indicates that the
veteran was found to have hepatic disease in January 1985.
This was an incidental finding noted during evaluation for
rectal bleeding and hemorrhoids. A private physician in
October 1985 determined that the veteran had stigmata of
alcoholism and cirrhosis of the liver. The physician writing
the report concluded that the veteran had advanced cirrhosis
of the liver, most likely on the basis of chronic alcoholism.
In February 1991, the appellant stated that the veteran and
she had first separated in August 1971 due to violent
beatings, and that there had subsequently been several
separations between then and his death. The reason for the
separations had been the veteran's drinking and violence.
In March 1994, the appellant stated that the veteran died of
cancer of the esophagus, that he had had a tour of duty in
Vietnam, and that she felt his exposure to Agent Orange
caused his death.
In July 1994, the appellant stated that when the veteran had
returned from service, he was bleeding through his anus.
Then, he had been treated for esophageal problems in about
1986 to 1987. She stated that she felt his esophageal
problems were due to Agent Orange exposure.
In August 1995, the appellant stated that the veteran had had
cancer in his respiratory system and that she felt that it
was due to Agent Orange exposure.
In April 1997, the appellant requested that VA evaluate for
service connection for the cause of veteran's death purposes
the relationship between porphyria cutanea tarda (PCT) and
the veteran's liver condition of cirrhosis. The veteran had
had a problem with chronic alcoholism and also had had
cirrhosis of the liver. The National Academy of Science had
released a study in 1993 concluding that many people who
developed PCT had long suffered from chronic alcoholism.
In May 1998, the appellant indicated that the veteran had
been stationed in Vietnam from August 1970 to September 1971
in the river waters as a machine gunner.
In September 1998, the appellant stated that the veteran had
died from cirrhosis of the liver due to alcoholism secondary
to post-traumatic stress disorder. She went into detail
about why she believed this was so.
In October 1999, the appellant stated that the veteran was
normal before he went to Vietnam and that he came back
discouraged and unhappy with his life. Also, spots would
break out on his skin and he would explain it as being due to
Agent Orange exposure. He would have nightmares and become
violent. Also, he would wear his jungle fatigues and climb
the roof acting like he was trying to get away from somebody.
Later, a doctor told him he had damage to his esophagus, and
the appellant felt that Agent Orange exposure had eaten away
at his esophagus.
A January 2000 report of contact indicates that the appellant
called stating that the veteran died as a result of Agent
Orange exposure. She also stated that the veteran had cancer
of the esophagus, and that she had submitted evidence showing
that.
In June 2000, private medical records dating from February
1982 to June 1989 were received from the appellant.
A January 1985 private medical record indicates that the
veteran reported having rectal bleeding since the prior
Thursday. He had used preparation H without relief. A
complete blood count was prescribed.
A late January 1985 private medical record reveals that after
the veteran complained of continued rectal bleeding, a chem
24, complete blood count, and ESR were ordered.
A late January 1985 proctoscopic examination report reveals
that the veteran reported having lost 7-10 pounds in the last
four months.
A February 1985 private medical record reveals that the
veteran's chem 24 revealed persistent elevation of hepatic
enzymes, and that a liver spleen scan had showed patchy
uptake over the liver with increased uptake in the bone
marrow and spleen consistent with hepatocellular disease.
Hepatocellular disease was assessed.
During a private medical evaluation in October 1985, when the
veteran was noted to have alcohol on his breath during an
evaluation, alcoholism was assessed.
On private evaluation in January 1986, the veteran admitted
to recent excessive drinking, and alcoholic hepatitis with
evidence of cirrhosis was assessed.
On private evaluation in March 1986, the veteran had massive
abdominal ascites, a liver mass, and persistent jaundice and
muscle destruction.
On private medical evaluation in June 1988, the veteran was
reported to have a history of alcohol abuse. He had a
history of drinking a case of beer over a week for the last
several years, and before two years, he was diagnosed as
having cirrhosis of the liver.
On private medical evaluation in August 1988, the veteran was
said to have severe alcoholic liver disease with recent
variceal bleeding. In September 1988, the physician
indicated that they were esophageal varices. In February
1989, it was reported that the veteran had gastric varices
also.
In April 2001, the appellant's representative stated that
there were several documents in the veteran's claims folder
that documented a history of abuse and alcoholism that could
have been symptoms of post-traumatic stress disorder that was
not diagnosed while the veteran was alive.
During a hearing which was held before the undersigned member
of the Board in December 2001, the appellant testified that
the veteran died due to residual disabilities he suffered
while he was in Vietnam due to Agent Orange exposure and
post-traumatic stress disorder. She felt that Agent Orange
consumed his whole body and caused him to die.
Pertinent law and regulations
When a claim has been denied and the decision becomes final,
new and material evidence must be received to reopen the
claim. 38 U.S.C.A. §§ 5108, 7105. By regulation, new and
material evidence is evidence which, when considered alone or
in conjunction with evidence previously considered, is so
significant that it must be considered in order to fairly
decide the merits of a claim. 38 C.F.R. § 3.156. Evidence
is new when it is not cumulative of evidence previously
considered. It is material when it is relevant and
probative, and is so significant that it must be considered
in order to fairly evaluate the merits of a claim. 38 C.F.R.
§ 3.156. If new and material evidence has not been received,
the claim may not be reopened. In order to warrant reopening
a previously and finally disallowed claim, the newly
presented or secured evidence must be not cumulative of
evidence of record at the time of the last prior final
disallowance and must tend to prove the merits of the claim
as to each essential element that was lacking in the last
final disallowance. Evans v. Brown, 9 Vet.App. 273 (1996).
The benefit of the doubt doctrine necessarily lowers the
threshold of whether the new and material evidence is
sufficient to change the outcome, but it is error to consider
reasonable doubt in deciding whether to reopen a claim.
Martinez v. Brown, 6 Vet.App. 462, 464 (1994).
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. 38 C.F.R. § 3.312(a) (2001).
It is considered the principal cause of death when it, singly
or jointly with some other condition, was the immediate or
underlying cause of death or was etiologically related
thereto. 38 C.F.R. § 3.312(b). For it to be a contributory
cause of death, it must be shown that it contributed
substantially or materially to cause death.
38 C.F.R. § 3.312(c). The above laws and regulations apply
in determining whether the cause of death is
service-connected. 38 U.S.C.A. § 1310(a) (West 1991).
Service connection may be granted for disability resulting
from disease or injury which was incurred or aggravated in
service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303
and 3.304 (2001). Additionally, service connection may be
granted for disability which was proximately due to or the
result of a service-connected disability.
38 C.F.R. § 3.310(a) (2001).
38 U.S.C.A. § 1116. Presumptions of service connection for
diseases associated with exposure to certain herbicide
agents; presumption of exposure for veterans who served in
the Republic of Vietnam [NOTE: Change effective Dec. 27,
2001]
(a) (1) For the purposes of section 1110 of this title, and
subject to section 1113 of this title--
(A) a disease specified in paragraph (2) of this
subsection becoming manifest as specified in that paragraph
in a veteran who, during active military, naval, or air
service, served in the Republic of Vietnam during the period
beginning on January 9, 1962, and ending on May 7, 1975; and
(B) each additional disease (if any) that (i) the
Secretary determines in regulations prescribed under this
section warrants a presumption of service-connection by
reason of having positive association with exposure to an
herbicide agent, and (ii) becomes manifest within the period
(if any) prescribed in such regulations in a veteran who,
during active military, naval, or air service, served in the
Republic of Vietnam during the period beginning on January 9,
1962, and ending on May 7, 1975, and while so serving was
exposed to that herbicide agent,
shall be considered to have been incurred in or
aggravated by such service, notwithstanding that there is no
record of evidence of such disease during the period of such
service.
(2) The diseases referred to in paragraph (1)(A) of this
subsection are the following:
(A) Non-Hodgkin's lymphoma becoming manifest to a
degree of disability of 10 percent or more.
(B) Each soft-tissue sarcoma becoming manifest to a
degree of disability of 10 percent or more other than
osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or
mesothelioma.
(C) Chloracne or another acneform disease
consistent with chloracne becoming manifest to a degree of
disability of 10 percent or more within one year after the
last date on which the veteran performed active military,
naval, or air service in the Republic of Vietnam during the
period beginning on January 9, 1962, and ending on May 7,
1975.
(D) Hodgkin's disease becoming manifest to a degree
of disability of 10 percent or more.
(E) Porphyria cutanea tarda becoming manifest to a
degree of disability of 10 percent or more within a year
after the last date on which the veteran performed active
military, naval, or air service in the Republic of Vietnam
during the period beginning on January 9, 1962, and ending on
May 7, 1975.
(F) Respiratory cancers (cancer of the lung,
bronchus, larynx, or trachea) becoming manifest to a degree
of disability of 10 percent or more [NOTE: Change is
effective January 1, 2002]
(G) Multiple myeloma becoming manifest to a degree
of disability of 10 percent or more.
(H) Diabetes Mellitus (Type 2). [NOTE: Change is
effective Dec. 27, 2001]
(3) For purposes of this section, the term "herbicide
agent" means a chemical in an herbicide used in support of
the United States and allied military operations in the
Republic of Vietnam during the period beginning on January 9,
1962, and ending on May 7, 1975. [NOTE: Change is effective
Dec. 27, 2001]
(b)(1) Whenever the Secretary determines, on the basis of
sound medical and scientific evidence, that a positive
association exists between (A) the exposure of humans to an
herbicide agent, and (B) the occurrence of a disease in
humans, the Secretary shall prescribe regulations providing
that a presumption of service connection is warranted for
that disease for the purposes of this section.
(2) In making determinations for the purpose of this
subsection, the Secretary shall take into account (A) reports
received by the Secretary from the National Academy of
Sciences under section 3 of the Agent Orange Act of 1991
[note to this section], and (B) all other sound medical and
scientific information and analyses available to the
Secretary. In evaluating any study for the purpose of making
such determinations, the Secretary shall take into
consideration whether the results are statistically
significant, are capable of replication, and withstand peer
review.
(3) An association between the occurrence of a disease
in humans and exposure to an herbicide agent shall be
considered to be positive for the purposes of this section if
the credible evidence for the association is equal to or
outweighs the credible evidence against the association.
(c) (1) (A) Not later than 60 days after the date on which
the Secretary receives a report from the National Academy of
Sciences under section 3 of the Agent Orange Act of 1991
[note to this section], the Secretary shall determine whether
a presumption of service connection is warranted for each
disease covered by the report. If the Secretary determines
that such a presumption is warranted, the Secretary, not
later than 60 days after making the determination, shall
issue proposed regulations setting forth the Secretary's
determination.
(B) If the Secretary determines that a presumption
of service connection is not warranted, the Secretary, not
later than 60 days after making the determination, shall
publish in the Federal Register a notice of that
determination. The notice shall include an explanation of the
scientific basis for that determination. If the disease
already is included in regulations providing for a
presumption of service connection, the Secretary, not later
than 60 days after publication of the notice of a
determination that the presumption is not warranted, shall
issue proposed regulations removing the presumption for the
disease.
(2) Not later than 90 days after the date on which the
Secretary issues any proposed regulations under this
subsection, the Secretary shall issue final regulations. Such
regulations shall be effective on the date of issuance.
(d) Whenever a disease is removed from regulations prescribed
under this section--
(1) a veteran who was awarded compensation for such
disease on the basis of the presumption provided in
subsection (a) before the effective date of the removal shall
continue to be entitled to receive compensation on that
basis; and
(2) a survivor of a veteran who was awarded dependency
and indemnity compensation for the death of a veteran
resulting from such disease on the basis of such presumption
shall continue to be entitled to receive dependency and
indemnity compensation on such basis.
(f) For purposes of establishing service connection for a
disability or death resulting from exposure to a herbicide
agent, including a presumption of service-connection under
this section, a veteran who, during active military, naval,
or air service, served in the Republic of Vietnam during the
period beginning on January 9, 1962, and ending on May 7,
1975, shall be presumed to have been exposed during such
service to an herbicide agent containing dioxin or 2,4-
dichlorophenoxyacetic acid, and may be presumed to have been
exposed during such service to any other chemical compound in
an herbicide agent, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during that service. [NOTE: This is an amendment of former
1116(a)(3) and is more favorable to claimants than the pre-
amendment law; change effective Dec. 27, 2001] See Public
Law 107-103, 115 Stat. 976 (2001).
Analysis
Previously, there had not been submitted evidence showing
that the veteran had post-traumatic stress disorder, and that
it caused his death or the conditions that caused his death.
There had been lay statements from the appellant to this
effect, but there was no competent medical evidence showing
that the veteran had post-traumatic stress disorder, or that
it caused his alcohol abuse or cirrhosis.
Thus, the recent lay statements from the appellant, to the
effect that the veteran had post-traumatic stress disorder
before his death and that it caused his alcohol abuse and
cirrhosis which led to his death are not new and material
evidence, but rather, are cumulative of evidence previously
submitted.
There also had previously been private medical records
showing that many years after service, the veteran developed
cirrhosis of the liver. The additional private medical
records which were received in June 2000 are cumulative of
the other private medical records which were already
considered. They show essentially the same thing; namely,
the development of cirrhosis many years after service and no
relationship between it and service. Thus, they too are
cumulative rather than new and material evidence.
The appellant asserts that Agent Orange exposure in service
caused the veteran's death. However, she has not submitted
any competent medical evidence showing a diagnosis of a
disease which the law presumes to have been incurred as a
result of Agent Orange exposure. See 38 U.S.C.A. § 1116 as
amended by Pub. L. No. 107-103, 115 Stat. 976 (2001).
Moreover, she has not submitted any medical evidence which
supports her assertion of a nexus to service independent of
the Agent Orange presumptive law. Accordingly, her
statements alone, in the absence of supporting medical
evidence, are cumulative in nature rather than new and
material evidence. See Moray v. Brown, 5 Vet. App. 211, 214
(1993).
As new and material evidence has not been received, the claim
is not reopened.
The Board does not doubt the sincerity of the appellant's
beliefs. However, at this time, there is no competent
evidence that the veteran had post-traumatic stress disorder,
there is no competent evidence that the veteran had cancer,
and there is no competent evidence that the veteran had a
disease or injury related to service, including possible
exposure to Agent Orange. There is an absence of competent
evidence that relates the cause of death to service. The
appellant was concerned that VA had not been listening to
her. The Board Member assures her that I listened to her
testimony and I again reviewed the claims file. However,
there remains an absence of competent evidence that would
serve to reopen the claim.
ORDER
New and material evidence not having been received, the claim
of entitlement to service connection for the cause of the
veteran's death is not reopened.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.